Social Security Set Aside

[capricorn]

To my understanding in my husband's case all worked the way Tim has described. His $$$$ part of his claim was settled with open medical which is odd. Two years later the IC wants to settle the medical. Hubby has been on SSD for about 2 years so already has medicare. CMS has been involved for awhile now. They have a dollar figure to settle the medical and the money will go into a special account in my husband's name. To my understanding his attorney received his 20% for settling the case and there are no other monies coming to him from the medical. I hope I understood what this thread is about.

CAP

[Timothy Belt]

Attorney's fees were originally addressed by Medicare in their 5/7/04 memorandum, and the prohibition can be reviewed online at http://www.cms.hhs.gov/WorkersCompAgency...TopOfPage.

As to an attorney taking his fee against the total amount and then leaving the Claimant to fund the full set-aside, my response may have been geared towards PA rather than all states. In PA the attorney's fee is capped at 20% of the recovery. So, for example if the settlement is $100,000 with a $20,000 set-aside, the attorney would only be able to take a fee against the $80,000 based upon the exclusion of fees per Medicare's memorandum. If the attorney then tried to deduct the fee from the full $100,000, that would be a $20,000 fee, but it could only be applied to the $80,000 not included in the set-aside resulting in an actual fee of 25% which exceeds PA statutory cap. I don't know if similar caps are in place in all states, so this may or may not hold true nationwide.

[1171]

I see. the penn state commission basically has disallowed the inclusion of the trust amt from the work comp fee provisions. I'm assuming the commission used the cms reg as the authority. California does not have a hard cap on atty fees so the comp court has more leeway. it is a regular practice that can fall disproportionately on workers that have a substantial percentage the settlement going to the setaside like furtwo who has the full atty fee being deducted from their half the settlement.
a lump sum buyout of the disability protion and leaving the med open still seems a viable alternative.

[Timothy Belt]

I have been following a discussion on fees in cases with Medicare set-asides in a PA lawyer only group that I belong to and apparently I am somewhat alone in my thinking. Other lawyers are taking fees against the full settlement including the set-aside, so my apologies to 1171 you were indeed correct.

1171 Wrote:Tim: can you give me the cite or a link on that atty fee prohibition?
that is definitely not my experience. I don't have a penn example but multiple other states with MSAs all have allowed a global (including trust amount) settlement fee for the atty .
(the msa is not reduced for atty fee but the msa amount is included in the calculation of the fee which is paid out of the remainder of the settlement proceeds.)
I not sure how the feds can assert jurisdiction over state work comp atty fee.

so for california the atty is based on the settlement amount that includes the MSA portion and not settling the future medical will reduce the atty fee; thus my comment.